79 Ark. 225 | Ark. | 1906
(after stating the facts.) It was error to give an instruction on the subject of negligence of appellant’s employees in failing to exercise care to stop the cars after they discovered the perilous position of the plaintiff. There was no evidence that they could have stopped the train after the plaintiff and his companions started upon the track behind the stationary cars. The moving cars were detached from the engine, there were no hand brakes on them with which to control them, and there was no air in the air brakes. They were moving at rapid speed, sufficient when they struck the standing cars to push or bump the latter a distance of about 250 feet, and they were very close to the standing cars when plaintiff and his companions went on the track. According to the undisputed evidence, it was impossible for the cars to have been stopped, after plaintiff or his companions started upon the track, in time to have avoided striking him.
It is urged by learned counsel for .plaintiff that the brakeman might have given a signal or warning of danger to attract the attention of those in peril. That question was not, however, submitted to the jury by this instruction, which told the jury that, notwithstanding contributory negligence - on the part of plaintiff, if they found that employees of the defendant discovered the peril in time to have stopped the cars and avoid the injury, and failed to do so, the defendant was liable. The jury should not have been instructed upon a charge of negligence for which there was no evidence. It was prejudicial error to do so. Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109, and cases cited.
But, it is insisted, the jury could rightfully have inferred that the employees in charge of the train of cars would not have sent them moving swiftly toward a public crossing without some means of stopping or controlling them. The jury were not warranted in drawing such inference in the face of the undisputed testimony of witnesses who stated positively that the cars were not at the time equipped with brakes or other means by which they could be stopped, and that there was no way in which they could have been stopped in time to avoid the injury.
Inasmuch as the case must be reversed on account of the error in giving this instruction, we need not discuss appellant’s other assignments of error.
Reversed and remanded for new trial.
